The Minister of Health and J.J.

The Minister of Health and J.J. Court Supreme Court Date 2003-10-28 Citation 2003 NSSF 42 Docket SFHAPA 10346 Judge/Registrar/Adjudicator Legere-Sers, Moira C. (Honourable Justice) (NSSF) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: The Minister of Health and J.J., 2003 NSSF 042 Date: 20031028 Docket: SFHAPA 10346 Registry: Halifax IN THE MATTER OF: The Adult Protection Act, R.S.N.S. 1989, c.2 - and - IN THE MATTER OF: The Minister of Health (formerly Community Services) - and - IN THE MATTER OF: J.J. (also known as J.B.) Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on September 25, 2008. Judge: The Honourable Justice Moira C. Legere-Sers Heard: September 22, 2003, in Halifax, Nova Scotia Written Decision: October 28, 2003 Counsel: Roberta Clarke, for the Minister of Health Karen Quigley, for the Attorney General Claire McNeil, for J.J. By the Court: [1]In the course of a 6-month review of an Adult Protection Order, several new issues arose with respect to J.J.. [2]Counsel on her behalf have raised several Charter arguments. Notice was given to Counsel for the Minister of Health and The Minister of the Attorney General. In addition, J.J. now argues she is not an adult in need of protection. [3]The Attorney General, on July 18, 2003, applied to have a guardian ad litem appointed, pursuant to Civil Procedure Rule 6:02. The Minister of Health supports this application. The adult, J.J., seeks to continue to retain and instruct counsel, as she has done since these adult protection proceedings commenced in 1999. [4]This decision relates to the application to appoint a guardian ad litem. [5]On February 16, 1999, the Minister of Community Services made application for an order under the Adult Protection Act finding J.J. an adult in need of protection. Since that time, there have been 6-month reviews and each time the Respondent, J.J., has been represented by counsel retained by her through the offices of Nova Scotia Legal Aid. The Minister of Community Services and now the Minister of Health, now responsible for the conduct of these matters, has never raised the issue as to J.J.’s competence to retain and instruct counsel. [6]For the most part, the application for the order declaring J.J. an adult in need of protection has gone unchallenged, save for the hearing on the first application. Placement has always been the compelling issue for the parties. Placement will be a critical issue in the future, although J.J. wishes to contest the finding in need of protection at the upcoming review. [7]The Attorney General raises this issue, in part, due to the nature and complexity of the Charter issues to be addressed. Counsel relies on the finding made pursuant to section 3(b)(i) of the Act, as contained in at least 10 subsequent orders , that J.J. is not competent to decide whether or not to accept the assistance of the Minister. [8] The Attorney General and the Minister of Health rely on section 6 of the Civil Procedure Rules to argue that the Court must appoint a guardian when the party at issue is incompetent. The rule reads as follows: INFANTS AND MENTALLY INCOMPETENT PERSONS 6.01. In this Rule,”Act” means the Incompetent Persons Act or the Adult Protection Act. 6.02.(1) A person under disability shall commence or defend a proceeding by his litigation guardian. (3) A litigation guardian of a person under disability shall act by a solicitor. 6.03.(3) Where a party becomes a mentally incompetent person and a guardian has not been appointed for him under the Act, the court shall appoint a litigation guardian for the party. (5) When it is in the interest of the party who is a person under disability, the court may remove, appoint, or substitute a litigation guardian and make such other order as is just. Medical Diagnosis [9]Over the course of the last four years, there have been many medical reports concerning J.J.’s medical condition; there are notable improvements in her ability to manage. Historically, there has been a consistent opinion that J.J. needs strong government support and services. Each report contained in the evidence has a specific purpose. [10]The attending physician’s report which has been attached to each review, is a form apparently created by the Department of Community Services. It requires a very general answer, without any specific focus, other than a general questionnaire to be completed by one doctor to briefly describe the mental status of the person (ie., competent or incompetent). There is an opportunity to add some comment on whether the person is an adult in need of protective services. [11]This form is submitted as part of the evidence, in support of the Minister’s application for an order which would declare the adult in need of protection and allow the Minister to intervene and provide services and placement if necessary. [12]The doctors who have completed these questionnaires in this case have always checked the box next to incompetent. As an example, the form completed by her doctor in support of the first application noted: “ J.J. has no insight into her mental illness and does not understand the consequences of her behavior on not taking medications.” [13]And, again, on August 13, 1999, another doctor wrote, after noting her to be mentally incompetent: “She lacks insight and is unable to understand the risks and benefits or failure to receive treatment.” [14]And again on November 1999: “J.J. does not understand that she has an illness and limitations, requires treatment and needs support. Her intellectual limitations make it unlikely she will develop an understanding or insight into these issues.” [15]Historically, the doctors note she has been unable to understand the risks and benefits of treatment. Another doctor treating her commented: “Her judgement and decision making in matters of everyday life are impaired.” [16]There has not been an analysis of the competency to retain and instruct counsel. There is nothing to suggest that the doctors ever turned their mind to this issue. [17] There are other medical reports submitted in the course of the past four years that support, analyze, inform the reader about her ability to live in the community, her specific day-to-day needs, that assist the persons responsible for her placement, in designing a plan that would address her needs and the needs and security of those around her. They speak to an assessment of her ability to make appropriate decisions regarding medication, her illness, her ability to care for her personal needs and live in community. [18]There is no evidence before me that suggests that any of these reports were done with a view to assess her competence to choose counsel, understand the reason she is in court and the possible outcomes of an order of the court. [19]The most telling piece of evidence that allows me to draw this conclusion is the fact that, after four years, when the issue is raised, those specialists, social workers, psychiatrists most charged and knowledgeable about her illness and needs determined that they were not the best available resource (whether for reasons of conflict or independence or other, I do not know) to assess J.J. in this regard. They deferred to Dr. Theriault, M.D., F.R.C.P.C., the Clinical Director, East Coast Forensic Psychiatric Hospital, Dartmouth. [20]Dr. Theriault was qualified by consent as an expert in the area of General Psychiatry, with a specialized knowledge in the area of forensic psychiatry. He has completed assessments relating to the issues of fitness to stand trial which includes fitness to retain and instruct counsel and dangerous offender applications, as well as other related assessments. He has given such testimony in both criminal and adult protection proceedings. [21]Dr. Theriault was first consulted to assess J.J. relating to a separate issue; risks associated with the then proposed placement plan. He saw her and reported his findings by report dated October 30, 2000. He noted “her long standing history of difficulties with aggressive, disruptive and impulsive behaviors dating back to her early years.” He did not think her an appropriate candidate for any of the formal risk assessment scales. Her diagnosis, he noted, was unclear over the years and she was then diagnosed as having a pervasive developmental disorder. The question he addressed was risk management. [22]Dr. Theriault noted that, because of her marked cognitive impairments and other deficits, teaching J.J. how to internalize a set of values and techniques to control her behavior was not useful. He recommended management by supervision and support. [23]He noted the treatment team tied her cognitive deficits to her personality attributes and her personal attributes to her behavior. They noted how the behavior demonstrates in different environments and outlined ways to minimize the behavior. He concluded: “In short, the support plan had to be a well thought out risk management plan which, when taken in its entirety, would reduce the risk to the public . . . she had little ability to control her behavior without the carefully applied application of external support.” [24]In September, 2001, Dr. Eastwood, M.D., F.R.C.P.C. submitted a report to her counsel to support her placement plan. Dr. Eastwood supported J.J.’s second placement preference that required a supervised community placement in a suitable small options home. She was familiar with J.J.’s diagnosis , treatment and progress. In her summary report, page 2, she noted the following: “In summary, J.J. has Pervasive Developmental Disorder with Mild Mental Retardation. The lack of empathy and social interaction skills coupled with a the limited problem solving ability, concrete thinking, impulsivity and difficulty structuring her time constructively make it impossible for J.J. to live independently. In addition, J.J. has a cyclic mood disorder which has contributed greatly to her behavioural dyscontrol. She has suffered psychotic experiences which may represent an element of the mood disorder, or which may be independent of the other diagnosis. Unfortunately J.J. has no insight into her limitations and does not believe she has a mental illness or a mental handicap. She denies the need for medications. J.J. can be so persistent in her demands that often clinicians have given into her demands for more independence which unfortunately has set her up for failure time and time again. The Adult Protection Order has required J.J. to remain in a setting where she has structure and where a consistent, positive behavioural approach can be used. She benefits from antipsychotic and mood-stabilizing medication which, to ensure compliance, is administered to her. Currently she is doing very well. I feel that the current behavioural approaches and management plan can be carried out in a community setting such as a small option home. J.J. has impaired social interaction but does learn by imitation; how to live and behave appropriately in the community among friends and family can more easily be learned in the community than in an institution. Finally, J.J. has a strong desire to live in a community setting rather than in an institution. Although she states she would rather live independently with her husband, she is agreeable to a small group setting with 24-hour staffing. Contemplating living in an institutional setting far from her husband and parents is very discouraging and upsetting to J.J..” [25]There are other reports that strongly support a small options placement. Each addresses the mental limitations associated with J.J.’s illness and the need for effective case management. While they identify the deficits in J.J.’s cognitive abilities, none support the Minister’s placement plan. This speaks to me of their ability to separate issues and speak clinically and objectively of the issues. [26]The last report which is relied on by J.J. is Dr. Theriault’s assessment of her ability to testify and her ability to retain and instruct counsel. Dr. Theriault testified that the assessment of a person’s competency, to be helpful, should be specific. One can be incompetent to look after oneself in the community on a day-to-day basis yet competent to retain and instruct counsel. One can be competent to consent to medical treatment or refuse medication yet incompetent in managing other-day to-day affairs. [27]In his latest report, dated May 13, 2003, he specifically addresses the issue that relates to J.J.’s ability to understand the nature and consequences of the adult protection proceedings, the risks to herself of the continuation of an Adult Protection Order, the role of the court, her counsel and counsel for the Minister. He notes, as do others, that much has changed, in the course of the last four years J.J. is in a stable environment. Essentially, as I look back at his report, the externals surrounding J.J. have provided an environment where the risk has been addressed sufficiently and managed appropriately, while she has made notable improvements in her personal life. [28]He did not canvass with her her understanding of the Charter issues and their significance. He did canvass with her the Adult Protection Act. He focused on court related competency. He did not discuss issues that related to her illness or treatment, although it is notable there is some change in her statement of intention respecting the taking of medication. He noted: “In discussing with J.J. the matters related to the court hearing itself, I was surprised that J.J. herself actually seemed to have a fairly good grasp of the situation. She is clearly aware that she is under an Adult Protection Order and generally speaking has an understanding of what this means...” [29](In summary) he said: “ J.J. has a good grasp of the different players and the courtroom setting, specifically her attorney and the judge, and she was aware of the potential outcomes of whether or not she stayed on an Adult Protection Order. In summary then, in my opinion, it could be said that J.J. is competent to represent herself at the hearing next week.” [30]Counsel for the Attorney General, in particular, is concerned about her competency, in light of the increased complexity of the Charter issues now being considered. I am less concerned about this, given that the ordinary layperson might not understand the arguments put forward to advance their cause but would have an understanding of what they want, how to obtain a lawyer, to instruct a lawyer, to obtain and consider advice and give instructions to the lawyer to advance their case. [31]There are a number of factors specific to this case that are important: 1. J.J. has experienced improvement. During the initial proceedings when her illness was less well managed and she was less compliant, there was never any question as to her ability to choose her own counsel. 2. Counsel have advised the court on a number of occasions that they are satisfied that they can represent J.J. without the need for a guardian ad litem. 3. J.J. has developed a workable relationship with counsel and they are familiar with her circumstances. She has confidence in them and a rapport with them. 4. Her parents have attended on many occasions in the past to support her position. While they have not testified in this motion, there is no indication that they disagree. In the past, when they wished to give evidence, they did so. They have testified in the past as to their belief and concern about their daughter, both in favor of an adult protection order and in opposition to the Minister’s placement plan. 5. The doctor most qualified to speak to the issue of her mental competency to retain counsel has indicated she is competent in this regard. Clearly, he is well familiar with her circumstances, having reviewed the entire history for the risk assessment. 6. J.J. is in a stable environment that has addressed the risk factors noted in Dr. Theriault’s first report. Were her living circumstances to change and her behavior destabilize, based on the evidence, her behavior may potentially worsen. 7. However, J.J. has complied with the court orders, the rules of the institution over a four-year period, when it is abundantly clear she did not agree with her diagnosis, her treatment plan, continued hospitalization, medication, et cetera. 8. Her tolerance has been tested through days of court appearances and for the most part she waits patiently, listening through expert testimony and argument, and there has never been an occasion when her behavior has disrupted the court. [32]I am concerned about the issue of time and sensitive to the need to adhere to time lines. This means should there be a change getting a guardian ad litem up to speed would be difficult. In addition, I am concerned about the need to establish a working relationship with J.J.. Clearly, the relationship that has been developed by her care providers, her doctors, workers, hospital staff and her lawyers is part of the reason for her success and for her continued compliance. [33]I have reviewed the test of capacity before by referring to Mental Disability and the Law in Canada, Second Edition, Gerald B. Robertson, L.L.B.,L.L.M. p.318. “The test of capacity must be related to the particular transaction or legal relationship in issue. Incapacity to retain counsel should not be presumed merely because a client is mentally disabled or lacks capacity in certain legal issues. The test of legal capacity is task specific, incapacity in one area does not necessarily mean incapacity in another.” (p.180) [34]The meaning of mental incapacity is discussed in chapter eight, p. 194. Therein, we are directed to ask the question, “Was the person capable of understanding what he or she was doing?” [35]This involves, among other things, an ability to understand the nature of the function and also its effect on a party’s interest. (The Bank of Nova Scotia v. K (1973) 41 D.L.R. (3d) 273). [36]In the civil context, there is a tendency to look at the specifics: “The mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained.” (Gibbons v. Wright (1954), 91 C.L.R. 423 (Aust. H.C.) [37]I have referred myself to M.K. v. Nova Scotia (Minister of Community Services) (1996), 153 N.S.R. (2d) 20, to review the results of my enquiry as to fitness and competency in civil and criminal proceedings, the issue of competency, as it related to specific functions, and in this case to the evidence about her ability, competency to retain and instruct counsel. At page 20 of that decision I included a list of questions constructed by different courts in making this kind of enquiry: i) Does he understand the nature of the charge against him? ii) Is he aware of the purpose of the trial? iii) Does he understand the nature of the oath? iv) Can he distinguish the pleas that are open to him? v) Does he understand the consequences of a conviction? vi) Is he able to comprehend the nature of the evidence? vii) Can he give his evidence in a coherent fashion? viii) Is he able to instruct his legal counsel on the evidence properly presented, so that he can make full answer and defense? [38]The test for fitness is articulated in R. v. Whittle (1994), 92 C.C.C. (3d), p.25. “It is predicated on the existence of a mental disorder and focuses on the ability of the accused to instruct counsel and conduct a defense.” [39]“It requires limited cognitive capacity to understand the process and to communicate with counsel” (ref. R. v. Taylor (1992), 77 C.C.C. (3d) 551, 17 C.R. (4th) 371; 13 C.R.R. (2nd) 346 (Ont. C.A.). The test does not go so far as to require that the accused be capable of making rational decisions beneficial to him. “The limited cognitive capacity “ test strikes an effective balance between the objectives of the fitness rules and the constitutional right of the accused to choose his own defense ....”(Lacourciere J.A. at p.567 (supra). [40]This issue of relating capacity to a specific function appeared to be central to Dr. Theriault’s assessment. While he confirmed that she may not have the capacity to understanding the nature of the Charter challenge, he canvassed with her, her understanding of the implications of the Adult Protection Order, what it meant to be under the Act, what it meant to be free from the operation of the Act, what advice she would give to counsel, her ability to understand the oath, her ability to testify, to relate to counsel, to take and give advice, et cetera. From his clinical construct he identifies that competency is directly related to the task, that is it is an issue of specific competency. [41]Counsel for the Attorney General has made this motion to appoint a guardian ad litem. The only professional evidence I have specifically related to this issue of fitness to retain and instruct counsel is that of Dr. Theriault. [42]At this time, I am satisfied J.J. is able to retain counsel of her own choosing, having due regard to the totality of the evidence, Dr. Theriault’s assessment and opinion and the specific factors I mentioned above. The evidence does not convince me, on the balance of probabilities, that I should change the status quo. [43]As this is a finding reliant on J.J.’s current condition, this is a motion that may be addressed again if circumstances change. If, for example, any one of the significant supports J.J. is familiar with is no longer present or if the significant relationships break down and her behaviour deteriorates, this issue ought to be revisited. It is a legitimate concern that requires review from time to time. J.